Sides argue Konick’s ‘standing’ in lawsuit against town

At the close of an hour-long hearing in Rappahannock County Circuit Court Monday morning, at which lawyers for the town of Washington and the Inn at Little Washington argued against lawyer David Konick’s “standing” to legally bring suit against both of them, Judge Jeffrey W. Parker took the matter home (the legal term being “under advisement”), and is expected to rule in a week or two.

The legal term for the town and Inn’s joint motion being argued Monday is “demurrer” — essentially a request that the court dismiss on the grounds that regardless of whether the alleged evidence is true or not, there is still no legal basis to the lawsuit.

The arguments for and against were made chiefly by Konick, representing himself, and the town’s special counsel Robert Mitchell (hired because town attorney John Bennett is likely to be a witness if the lawsuit goes forward; in the courtroom, Inn attorney David Fiske made few comments and deferred mostly to Mitchell’s arguments).

Konick’s suit alleges that the town and the Inn broke state procurement and conflict of interest laws and violated the constitutional ban on church-state transactions in several actions the town took to participate in a 2013 “town square beautification” partnership with the Inn and Trinity Episcopal Church to improve the properties around the intersection of Main and Middle streets.

The town violated the church-state ban when it appropriated $20,000 to the Inn, Konick’s suit alleges, to help pay for what the Inn has said is a $200,000 project to repave and landscape Trinity’s parking lot at that corner (which the Inn leases from the church) and more extensive but as-yet uncommenced improvements to the stub end of Middle Street.

The town also illegally abandoned and deeded to the Inn that 171-foot street stub, Konick’s suit claims. Both the town and Inn owner Patrick O’Connell, a town council member, also violated state procurement and conflict of interest laws in the months leading up to both transactions, Konick says.

None of this was argued Monday morning, however, before a courtroom packed with about 40 people, including most of the town of Washington’s public servants and many of the town’s critics who, over the past year, have publicly objected to the town’s dealings with the Inn and, last year, with developer and White Moose Inn owner Jim Abdo.

What was argued was Konick’s legal standing to bring suit — Konick maintaining that his daily visits to the town, where he has leased a post office box since 1977 and parked on the section of Middle Street that was deeded to the Inn (though still not developed) and paid the town’s meals and lodging taxes when lunching at the Country Cafe, gave him ample right to petition the court to declare the town’s 2013 actions invalid. (The suit asks no damages, just the court’s declaratory judgement on the council’s actions.)

(The town council is due to consider actions to “undo, and possibly redo” the transactions in question at its next monthly meeting May 11.)

Parker gave each side 30 minutes to make a case for or against the demurrer motion — which, if granted, would stop the suit but would still allow action on related motion by Fiske for sanctions against Konick for bringing the suit for an “improper purpose,” which Fiske claims is a longstanding vendetta Konick has against O’Connell and the Inn.

In the courtroom, Konick pressed his claim that he is a town taxpayer via his meals-and-lodging related payments (the town has no property tax, only a tax on meals and lodging sold in town). He also cited a sentence in the section of the state’s conflict of interest act that authorizes the state’s attorney general and commonwealth’s attorneys to enforce the act, which reads: “Irrespective of whether an opinion of the attorney for the Commonwealth or the Attorney General has been requested and rendered, any person has the right to seek a declaratory judgment or other judicial relief as provided by law.”

“The town does not concede the fact that he is a taxpayer,” Mitchell countered, “based on his consumption of food and payment of meals tax. The responsibility of the payment of that [meals-and-lodging] tax is the responsibility of the restaurant, not the responsibility of the customer. If a meal is sold and the meal tax for that transaction is not paid, the town looks to the restaurant to pay that tax. It doesn’t go after the individual who had that meal.

“Under this theory, anybody who stops in the town of Washington and buys a meal, and thereupon becomes a taxpayer of the town, by Mr. Konick’s argument, then would have standing to pursue a suit against actions by the town council,” Mitchell said.

Though he made no ruling Monday, Parker appeared in general to take issue less often with Mitchell’s arguments than with Konick’s. He interrupted Mitchell just two or three times — once because he’d said he’d just realized that the arguments were sufficiently complicated to require 30 minutes rather than the 15 minutes he’d initially asked for, and several times to agree or amplify something Mitchell had said. Parker often interrupted Konick, usually to question a point, making Konick’s arguments more of a dialogue between the two.

As Konick was maintaining at one point that his regular use of the street, in connection with his use of the post office, gave him standing necessary to bring suit, Konick cited a case involving the Chesapeake Bay Foundation vs. the State Water Control Board, in which the state Supreme Court found that “a claimed injury need not be a large one, and an identifiable trifle will be sufficient to meet the injury in fact requirements,”

“But you still need standing, don’t you?” Parker asked.

“Well that’s what they were saying,” Konick said, “that if you have an injury in fact, you have standing — that’s what that case was all about, because it was claimed those people didn’t have standing and it was found they had an interest in the Chesapeake Bay and its pollution and the preservation of the environment there which was sufficient to give them standing.”

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